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Post-hearing submissions

Muvunyi made two additional written submissions, after the appeal hearing, relating to (i) a response to a question raised by one of the Judges about whether the omission of a certain fact from the Indictment rendered it defective for lack of notice; and (ii) mitigating factors in sentencing. The Prosecution objected to these submissions and requested that they be expunged from the record.

5. In the Appeals Chamber’s view, Muvunyi’s submission in this respect does not constitute an attempt to vary the grounds of appeal pursuant to Rule 108 of the Rules, but is instead an attempt to clarify and expand upon an existing ground of appeal based on the question raised by a Judge during the Appeals Hearing. The Appeals Chamber further notes that, if it had considered that additional submissions were necessary for the fair determination of the appeal, it would have asked Counsel to provide further submissions on that question. However, in the absence of a specific request by the Appeals Chamber or prior leave granted by it, there is no provision in the Rules under which a party may make written submissions after the hearing of the appeal for the purpose of clarifying issues raised during the hearing. Counsel for Muvunyi had the opportunity of addressing this issue during the Appeals Hearing in response to the question, but did not do so. The Appeals Chamber did not request further submissions nor did Counsel for Muvunyi seek leave to make additional submissions on this point.[1] The Appeals Chamber is therefore satisfied that this submission should not be considered further.

6. [. . .] Muvunyi has not previously raised this issue[2] nor was it raised during the Appeals Hearing by the Judges or either of the parties. In the Appeals Chamber’s view, this therefore constitutes a new submission going beyond the existing grounds of appeal.

7. The Appeals Chamber recalls that pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal”. Such requests must be made “as soon as possible after identifying the new alleged error”[3] of the Trial Chamber, and must “at least, explain precisely what amendments are sought and why, with respect to each such amendment, the ‘good cause’ requirement of Rule 108 [of the Rules] is satisfied”.[4] In the present case, the Appeals Chamber is not convinced that Muvunyi has properly sought leave to amend his grounds of appeal, nor that he has shown good cause. The Appeals Chamber is therefore satisfied that this submission should not be considered further.

[1] The situation in the present case therefore differs from that in Prosecutor v. Anto Furundžija, where a Judge asked Counsel for Anto Furundžija a question during the appeals hearing about a finding in a specific case. Counsel indicated that he would “be glad to go back to it and check it for you” (Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, AT. 2 March 2000 p. 189). In that case, the Appeals Chamber admitted a document filed by Anto Furundžija subsequent to the hearing on the basis that the Judge’s “request for information during oral hearings constitutes good cause for its admission”. Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Decision on Defence Filings Subsequent to the Close of the Appeal Hearing, 5 May 2000, p. 3.

[2] In his Appeal Brief, Muvunyi challenged the factual finding that he had assisted the Bicunda family and also argued that since this finding underpins his conviction under Article 6(1) of the Statute of the Tribunal (“Statute”) for aiding and abetting the attack at Groupe Scolaire, it was impermissibly used in aggravation (Muvunyi Appeal Brief, para. 114). Muvunyi also did not address this issue in his Response Brief to the Prosecutor’s appeal on sentence.

After the Appeal Hearing was held in this case, Muvunyi requested that the Appeals Chamber consider the Appeal Judgement in Prosecutor v. Hadžihasanović, rendered on 22 April 2008, as it represented new authority on superior responsibility that was applicable in assessing Muvunyi’s liability.

6. The Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal[1] or if it has made a specific request to the parties for further information.[2] Muvunyi argues that a new jurisprudential development demands that the Appeals Chamber consider his post-hearing submissions. The Appeals Chamber notes that in preparing a Judgement, it considers all relevant jurisprudence, including decisions issued after the hearing of an appeal. If additional submissions from the parties on the Hadžihasanović Appeal Judgement had been necessary for a fair determination of the appeal in this case, the Appeals Chamber would have requested Counsel to provide further submissions. The Appeals Chamber has not done so.